20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
15 December 2021
Name of the Event: Complementarity and the ICC: from preliminary examinations (Guinea, Colombia) to investigations (Sudan, Venezuela) (hosted by the International Federation for Human Rights (FIDH))
Report by: Alexandrah Bakker, Research Associate PILPG-NL
Highlights:
The Office of the Prosecutor places considerable emphasis on the principle of complementarity. The ICC cannot pursue all situations or cases, so complementarity is a practical necessity.
Speakers noted that involvement by the Office of the Prosecutor in situation countries can place pressure on national authorities to pursue genuine accountability, and called for such pressure to be maintained or increased.
Speakers:
Ms. Angela Mudukuti, International Criminal Justice Lawyer;
Ms. Delphine Carlens, Head of the International Justice Desk at FIDH;
Dr. Rod Rastan, Legal Adviser at the ICC Office of the Prosecutor (OTP) and Acting Head of the Preliminary Examinations Section;
Ms. Jimena Reyes, Americas Director at FIDH;
Ms. Asmaou Diallo, President of l’Association des victimes de ce massacre, parents et amis (AVIPA);
Mr. Alpha Amadou DS Bah, Vice President of l’Organisation Guinéenne de défense des droits de l’homme et du citoyen (OGDH);
Mr. Amir Suliman, Legal Advisor at the African Centre for Justice and Peace Studies
Summary of the Event:
Opening the event, Ms. Delphine Carlens described FIDH’s work examining the implementation of the principle of complementarity on the ground, including in the situations under discussion at this side event, namely Guinea, Colombia, Sudan, and Venezuela. The moderator, Ms. Angela Mudukuti, stressed that the application of the principle of complementarity affects not only the work of the Office of the Prosecutor (OTP), but also survivors and their communities.
The first speaker, Dr. Rod Rastan, described the OTP’s approach to complementarity. He explained that the ICC simultaneously has limited resources and is expected to have universal coverage. Therefore, it must be selective in the situations and cases it pursues. At the same time, Dr. Rastan recognized that the ICC, by design, usually becomes involved in states where national authorities have failed or have limited capacity. This is part of the ICC’s mandate but also puts the focus on the ICC to intervene in a way that is not sustainable.
Dr. Rastan also noted that the expression “positive complementarity,” while used often, has different meanings to different parties, even within the ICC. He observed that, for the Assembly of States Parties, on the one hand, positive complementarity refers to substantial rule of law assistance accorded between states to support those who are willing but unable to prosecute suspects of international crimes. On the other hand, the Office of the Prosecutor does not have the resources to provide such extensive assistance to states, and so its understanding of positive complementarity relates to a more limited degree of support.
In the next part of the event, Ms. Mudukuti asked each of the remaining speakers to reflect on complementarity and on the ICC’s involvement in Guinea, Colombia, Sudan, and Venezuela.
Mr. Alpha Amadou DS Bah explained that the ICC’s involvement in Guinea has led to significant advances on the domestic level. More specifically, the OTP has exerted pressure on the Guinean authorities that have led to both judicial and legislative advances. For one, a trial is due to open in March 2022 against alleged perpetrators of the massacre of September 28, 2009. Moreover, Guinean legislators amended their penal code, as a result of OTP pressure, to include torture as a crime against humanity.
Ms. Jimena Reyes reflected on the situation in Colombia, and particularly on the decision by the OTP to close the preliminary examination on this situation. Although the OTP first opened this preliminary examination in 2014, Ms. Reyes considered that its closure was premature, given that the peace agreement and establishment of the Special Jurisdiction for Peace are recent developments and insufficient evidence of a willingness by national authorities to prosecute suspects. Moreover, she commented that victims felt betrayed by the closure of the preliminary examination, in particular because the activities of the previous Prosecutor, Ms. Fatou Bensouda, indicated that the OTP intended to maintain its involvement.
Mr. Amir Suliman noted that, according to national, regional, and international reports, Sudan is a state in which the authorities are both unable and unwilling to pursue accountability. He emphasized that the composition of the government, including the presence of members of the military and persons affiliated with former president Omar Al Bashir in the executive, constitutes one of the primary obstacles. Mr. Suliman further observed that past attempts at positive complementarity, such as the establishment of a Special Court for Darfur and the introduction of international crimes into Sudanese criminal law, have not been followed through. The Special Court is not in operation and the law is not implemented. As such, Mr. Suliman commented that for there to be justice on a national level, there needs to be complete legal reform and a meaningful engagement of victims in the process.
Ms. Asmaou Diallo reflected further on the situation in Guinea, and particularly on the massacre of September 28, 2009. She reiterated Mr. Bah’s observations that the OTP’s presence in Guinea has had a significant positive influence. She requested that the OTP maintain its presence to ensure that the trial scheduled for March 2022 proceeds under suitable conditions.
Last, Ms. Jimena Reyes took the floor again to consider the situation in Venezuela. She praised the decision to open an investigation, describing it as an important step towards accountability and noting that this is the first ICC investigation in Latin America. Ms. Reyes observed that, despite the Memorandum of Understanding signed between Prosecutor Karim Khan and Venezuelan authorities being centred on positive complementarity, FIDH’s analysis shows that Venezuelan prosecutions face many challenges, including interference by the executive, significant violations of due process, and a lack of resources.
Ms. Mudukuti next asked each speaker to note what they would like the ICC to do. All speakers asked the OTP to continue to exert pressure on national authorities. Ms. Reyes also asked the OTP to reopen the preliminary examination in Colombia, and to ensure that the signature of the Memorandum of Understanding in Venezuela does not lead to an excessively long investigation.
To conclude the session, Dr. Rastan shared his final thoughts in light of the other speakers’ observations and requests. In relation to the situation in Colombia, he shared that the key priority is now to sustain the domestic accountability process to ensure that recent developments continue to produce positive results. He shared Mr. Bah and Ms. Diallo’s view that the OTP’s involvement in Guinea has been positive, and noted that the OTP would like to maintain their engagement, including by sending further missions to Guinea and even organizing a visit by Prosecutor Karim Khan. In addition, he noted that the signature of the Memorandum of Understanding in Venezuela does not mean that the OTP will stop pursuing its own independent and impartial investigation, but that it wishes to encourage national efforts towards genuine accountability. Last, he noted that it is particularly important in Sudan that pressure be sustained to obtain the cooperation owed by national authorities to the ICC.